Y0UR OPPONENT'S WITNESS STATEMENT CANNOT BE DISCLOSED UNTIL AFTER IT IS USED AT A HEARING IN PUBLIC: A USEFUL REMINDER

The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing in public. Further this is a rule of general application. As the case shows this principle applies to documents disclosed in the course of litigation.

THE CASE

The judge was considering a case management application in a defamation application. One of the orders being sought was that the Defendants be given permission to disclose the witness statements in the case to the police.

KEY POINTS

A witness statement disclosed in the course of litigation cannot be used for any other purpose without the permission of the court.

The party serving the statement does not need court permission.

The requirement for permission from the court ceases once the witness statement has been put in evidence at a hearing held in public.

A REMINDER OF THE RELEVANT RULE

Use of witness statements for other purposes

32.12

(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2) Paragraph (1) does not apply if and to the extent that–

(a) the witness gives consent in writing to some other use of it;

(b) the court gives permission for some other use; or

(c) the witness statement has been put in evidence at a hearing held in public.

JUDGMENT ON THIS ISSUE

Disclosure of witness statements and documents

The defendants seek permission to make disclosure to third parties of the witness statements served by the claimant and his wife, as well as their own witness statements. Mr Munden states in his skeleton argument that the CPS investigation into the claimant following the arrest referred to in the second email continues, and that the CPS have shown interest in the witness statements exchanged in this claim. Permission is therefore sought to disclose the statements to East Anglia CPS. To this application the defendants added at the hearing an application for permission pursuant to CPR 31.22 to provide copies of the recently disclosed documents.

Witness statements

I do not understand r 31.12 to place any restriction on the use which a party may make of witness statements prepared by that party itself. Other rules may sometimes have the incidental effect of restricting a party’s freedom in that respect. This would be so if, for instance, the document contained further information subject to a restrictive order under CPR 18.2, or if it exhibited or otherwise used documents disclosed by another party whilst the restrictions on collateral use imposed by CPR 31.22(1) still applied. Absent such an incidental restriction, however, a party does not require the court’s permission to provide a non-party with the same information it provides to its opponent and the court. In any event, as the defendants accepted, they can obtain the consent of the witnesses to the disclosure of those statements.

The position is different when it comes to the claimant’s witness statements in this action. They will remain subject to the restriction on collateral use in r 32.12(1) until they are put in evidence at the trial, in two weeks’ time, unless I make an order granting permission now. As Ms Lintner pointed out, there is no evidence in support of the defendants’ application, which is not the subject of any formal application notice. All that she and the court have to go on is what is said in Mr Munden’s skeleton argument about the interest shown by the CPS in the statements in this action.

This is a frail and insubstantial basis on which to seek an order for the disclosure to third parties of witness statements, the purpose of which is to facilitate the fair disposal of civil litigation. It is not even said that the documents are necessary for the investigation, as opposed to merely being of interest. Besides the short notice on which this application has been made I do not consider that any adequate case has been made out to justify a departure from the general regime, by which statements are protected against collateral use until they are put in evidence.

If the trial proceeds in two weeks time, then it seems that the witness statements in question will cease to be subject to restrictions, at least to some extent. I would not rule out the prospect of the court entertaining a fresh application, if made on proper notice and supported by evidence. But the evidence and information presently available are not sufficient in my view.

Disclosure

The position is similar in my judgment when it comes to the claimant’s recent disclosure. The application is on even shorter notice, made orally without supporting evidence. No sufficient grounds are shown for granting dispensation from the ordinary regime at the present time.